Bayne v. Provost, 1:04-CV-44 TJM/RFT.

• Decision Date: 25 January 2005
• Docket Number: No. 1:04-CV-44 TJM/RFT.,1:04-CV-44 TJM/RFT.
• Citation: 359 F.Supp.2d 234
• Parties: Martin BAYNE, Plaintiff, v. Shawanda M. PROVOST, Stephen A. Meehan et al., Defendants.
• Court: U.S. District Court — Northern District of New York

359 F.Supp.2d 234

Martin BAYNE, Plaintiff, v. Shawanda M. PROVOST, Stephen A. Meehan et al., Defendants.

No. 1:04-CV-44 TJM/RFT.

United States District Court, N.D. New York.

January 25, 2005.

Kevin S. Mednick, Bendall, Mednick Law Firm, Schenectady, NY, for Plaintiff.

Nelson Sheingold, Office of Attorney General, Albany, NY, for Defendants.

DECISION AND ORDER

TREECE, United States Magistrate Judge.

The pressing issue before this Court is whether the Defendants can be restricted from conducting an ex parte interview of the Plaintiff's health and medical providers by virtue of a limited or restrictive HIPAA¹ medical authorization. The parties have submitted to this Court letter-memorandum setting forth their respective positions addressing whether the Plaintiff has the authority to limit Defendants' access to health and medical providers, or conversely, whether the Defendants can have, in addition to receiving written medical records, ex parte interviews with the Plaintiff's health and medical providers, but more specifically nurse practitioner, Linda Cardamone.²

FACTS

The Complaint in this action alleges a violation of Mr. Bayne's civil rights under 42 U.S.C. § 1983, as well as a second cause of action for false imprisonment. Dkt. No. 1, Compl. The allegations are as follows: Martin Bayne suffers from Parkinson's disease and requires home nursing. One of his home nurses was Linda Cardamone, a nonparty to this action. On January 15, 2003, Ms. Cardamone initially performed her nursing duties at Bayne's residence but later in the day spoke with him by phone. Based upon that conversation, Ms. Cardamone made another phone call seeking emergency assistance on the grounds that Mr. Bayne threatened to commit suicide. Defendants Provost and Meehan, New York State Troopers, responded to the emergency call, took Bayne from his home, purportedly without conducting an investigation or a mental health determination, and placed him in an ambulance, which took him to Saratoga Hospital for a mental health evaluation. The next day, Mr. Bayne was released from the hospital with no finding of suicidal ideation. Compl. at ¶¶ 10-16.

As a part of discovery, Defendants submitted to the Plaintiff a HIPAA waiver so that they may have access to all of Bayne's medical records. See Dkt. No. 16, Ex. 1. Rather than executing the authorization provided by the Defendants, the Plaintiff provided a limited medical authorization which states in part: "This authorization is for written records ONLY. You are NOT authorized to discuss any matters relating to my medical condition, course of treatment or prognosis." Dkt. No. 17 at p. 1. Of course, Defendants object to this limited medical authorization. It appears that Defendants wish to have a less restrictive medical authorization so that they may have ex parte interviews with medical providers, but more so with Linda Carmadone, who is both a critical fact witness and a health care provider. Dkt. Nos. 16 and 17. Since the parties are unable to resolve this issue, notwithstanding their good faith efforts, the parties jointly seek court intervention. Id.

DISCUSSION

There appears to be no disagreement between the parties that, currently, medical authorizations, in and of themselves, are controlled by HIPAA. Where they disagree, however, pertains mostly on what law should be utilized in determining HIPAA's application to these circumstances. To be more specific, the issues are whether federal or state law controls the issuance of HIPAA medical authorizations and whether HIPAA permits or restricts ex parte interviews of health and medical providers.

The critical statutory provisions relative to this discussion may be found in 42. U.S.C. §§ 1320d & d-2 through d-7. These provisions set the standards by which certain medical or health information may be transmitted from health care providers, clearinghouses, health plans, employers, life insurers, schools, and the like to others. See 42 U.S.C. § 1320d (definitions). Health information means "any information, whether oral or recorded in any form or medium, [which may include electronic] that is created or received by health care provider[s] ... and relates to the past, present, or future physical or mental health or condition of an individual, [or] the provision of health care to an individual." 42 U.S.C. § 1320d(4); see also 42 U.S.C. § 1320d(6) (regarding individually identifiable health information).³ Further, 42 U.S.C. § 1320d-2 directs the Secretary of Health and Human Services ("HHS") to promulgate rules and regulations for transactions of such health information and to establish regulations that will safeguard and protect the privacy of the medical records. To that extent, in 2001, HHS had indeed promulgated rules and regulations to secure the privacy of an individual's identifiable health information and to control their release and transmittal by covered entities. 45 C.F.R. §§ 164.500-535 & 164.512; Nat'l Abortion Fed'n v. Ashcroft, 2004 WL 555701, at *2 (S.D.N.Y. Mar. 19, 2004) (citing, inter alia, 45 C.F.R. §§ 164.500-535). With regard to § 164.512, these rules and regulations set forth how health information may be used and disclosed "for which an authorization or opportunity to agree or object is not required." Id.⁴

Judicial and administrative proceedings are forums in which health information may be disclosed or disseminated pursuant to 45 C.F.R. § 164.512. See, supra, 2004 WL 555701, *3 n. 4. The pertinent rule and regulation regarding the standard for disclosure of health information for judicial proceedings reads as follows:

(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:

(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or

(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:

(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or

(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.

45 C.F.R. § 164.512(e) (emphasis added).

Thus, under this specific rule and regulation, it is evidently denudate that a purpose of HIPAA was that health information, that may eventually be used in litigation or court proceedings, should be made available during the discovery phase. Id. at § 164.512(e)(1)(ii). And, § 164.512(e) unequivocally permits health care providers and other covered entities to disclose protected health information without patient consent in judicial proceedings. Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923, 925 (7th Cir.2004); Nat'l Abortion Fed'n v. Ashcroft, 2004 WL 555701, at * 2.

In terms of solidifying further protection of these medical records, the rules and regulations advise us that they "shall not supercede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation." See 45 C.F.R. § 160.203(b); see also 42 U.S.C. § 1320d-7. A standard is "more stringent" if it "provides greater privacy protection for the individual who is the subject of the individually identifiable health information" than the standard set forth in the rules and regulations. 45 C.F.R. § 160.202(6) (as cited in Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923, 924 (7th Cir.2004)). With all of this being noted, we now turn to the issue whether New York law has been preempted by HIPAA.

The Plaintiff argues that New York law controls in determining whether ex parte interviews of medical providers should be allowed, to wit, New York law is both contrary to HIPAA and its requirements are more stringent than federal law. The first prong of his argument stems from the claim that state law privileges and their related substantive law, which in his view is more stringent than HIPAA, precludes ex parte discussions. The second prong of his position is that if state law privileges are not applicable, then other state common law and litigation practice and policy are far more exacting than HIPAA and they too foreclose ex parte communications. That being so, the Plaintiff claims that his HIPAA authorization restricting the disclosure of his health information to written records was appropriate and should stand. However, considering the two prongs independently or collectively, we do not accept the Plaintiff's premises. First, we will address the Plaintiff's state privilege contention.

The Plaintiff asserts that since there is a state cause of action in this litigation, that being false imprisonment, Federal Rule of Evidence 501, provides the salutary rule. This Rule of Evidence states in part that "in a civil action and proceedings, in which State law supplies the rule of the decision, the privileges of the witness ... shall be determined in accordance with State law." FED. R. EVID. 501. As such, if state law is controlling in this case, the Plaintiff asserts that we must default to state law when determining the scope or parameter of discovery of medical information. Concurrently, it is also the Plaintiff's view, based upon the same argument, that New York has a more stringent...